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1997 Supreme(All) 474
HIGH COURT OF ALLAHABAD
S.H.A.Raza, Shobha Dikshit
GRAM PANCHAIT KANTA GULZARPUR UNNAO
Versus
COLLECTOR UNNAO
Decided On : 29 April 1997
W. P. No. 3675 (M/b) of 1996
D.C.MUKHARJI, S.S.CHAUHAN,
The provisions of the Gaon Sabha Manual and Government Orders regarding preference in granting fishing rights leases apply to both the grant and renewal of leases.
Headnote:
FISHING RIGHTS - LEASE RENEWAL - PREFERENCE TO CERTAIN COMMUNITIES - U. P. Z. A. AND L. R. ACT, 1950 - SECTION 126 - GAON SABHA MANUAL - PARA 60 (2) KHA - GOVERNMENT ORDERS - INTERPRETATION AND APPLICATION.
Fact of the Case:
A Gram Panchayat challenged the renewal of a fishing rights lease granted to a non-preferential community member, arguing that preference should have been given to certain communities as per the Gaon Sabha Manual and Government Orders.
Finding of the Court:
The court held that the renewal of the lease in favor of the non-preferential community member was not in accordance with the law and quashed the impugned order approving the renewal.
Issues: 1. Whether the provisions of the Gaon Sabha Manual and Government Orders regarding preference in granting fishing rights leases apply to the renewal of leases. 2. Whether the renewal of the lease in favor of the non-preferential community member was valid.
Ratio Decidendi: 1. The court interpreted the provisions of the Gaon Sabha Manual and Government Orders to hold that they apply to both the grant and renewal of fishing rights leases. 2. The court found that the renewal of the lease in favor of the non-preferential community member was not in accordance with the law as it violated the provisions of the Gaon Sabha Manual and Government Orders, which mandate preference to certain communities.
Final Decision: The court allowed the writ petition, quashed the impugned order approving the renewal of the lease, and issued a writ of mandamus directing the authorities to grant the lease afresh in accordance with the law.
Gram Panchayat Kanta Gulzarpur, pargana Bangarmau, teh-sil Safipur, Block Bangarmau, Post Kanta Gulzarpur, district Unnao through its Pradhan Smt. Shamshul has filed the present writ petition praying for issuance of a writ in the nature of certiorari quashing the im pugned order dated 30-1-96 pertaining to approval of the proposal for renewal of lease for fishing rights in favour of opposite party No. 3. The petitioner also prayed for quashing of the certificate of renewal issued in favour of opposite party No. 3 and not to implement or operate certificate of renewal issued by opposite party No. 2 in favour of opposite party No. 3.
2. The factual matrix in short compass is that on 8-8-86 respondent No. 3 Sri Fariduzama Khan was granted a lease for ten years pertaining to fishing rights in the pond in question. The agreement for the said lease-deed was executed on 17-12-86. Admittedly, the period of lease deed expired on 17-12-96. A year before from the date of expiry of the lease opposite party No. 3, Sri Fariduzama Khan preferred an application before the respondents No. 1 and 2 for renewal of the lease for a further period of five years.
3. According to para 60 (2) kha of the Gram Sabha Manual such leases can be renewed for a period of five years if the work of the lessee was satisfactory.
4. As the certificate of renewal of the lease was not granted to respondent No. 3 Sri Fariduzama Khan he preferred a writ petition bearing No. 2207 (Ma) of 1996 praying that Up Zila Adhikari Safipur, Unnao, be commanded to issue certificate. On 30-7-96 a Division Bench of this Court passed the following order:
"list on 19-8-1996.
Contention of the petitioners counsel is that petitioners application for renewal of fisheries right has been accepted but the certifi cate has not yet been issued. He also filed a copy of the said acceptance contained in annexure No. 13. In these circumstances we direct the opposite party No. 2 Up Zila Adhikari Safipur, Unnao, either to issue a certificate in accordance with order alleged to be passed in favour of the petitioner or file counter affidavit before 16-8-96 as to why the same has not been granted. In the meantime status quo be maintained. "
5. Although the Up Zila Adhikari, Safipur, Unnao, was ordered to either issue a certificate or file counter affidavit before a particular date indicating as to why the same may not be granted, he preferred to issue the certificate in favour of respondent No. 3 and also got the lease deed executed, when no such specific order was passed by the Court. It was submitted that in pursuance of the said order and the lease deed the opposite party No. 3 started fishing into the pond in question.
6. Ultimately on 4-12-96 a Division Bench of this Court finally dismissed the writ petition which was filed by Sri Fariduzama Khan because of its having be come infructuous, may be for the reason that certificate was already issued in his favour and he had started fishing in the pond in question. However, this Court on 4-12-96 provided that it would be open for the Gaon Sabha to challenge the renewal of the lease of the petitioner in accordance with law. In the body of the order the Court has noted down the submission advanced on behalf of the Gaon Sabha, whose counsel Sri D. C. Mukherjee had submitted that the amended portion of the para 60 (2) Kha of the Gaon Sabha Manual and other Government Or ders were not brought to the notice of the Court by the petitioner, which provided that the first preference in the matter of licence/lease for fishing rights was to be given to the Registered Cooperative Societies of the fishermen recognised by the Fisheries Department thereafter the Cooperative Societies of the concerned Nyaya Panchayat area/block level area. If no such cooperative society existed in the area then it would be given to the persons tradi tionally engaged in such profession like Machchua, Mallah, Kewat, Bind, Lodhi, Dheewar, Dhimar, Kashyap, Bothom, Raikwar,
